M/S Tridhara Agro Industries vs M/S Bhagyalaxmi Traders
2022 Latest Caselaw 1315 Kant

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           THE HIGH COURT OF KARNATAKA
                 KALABURAGI BENCH

    DATED THIS THE 31ST DAY OF JANUARY 2022
                        PRESENT

   THE HON'BLE MR.JUSTICE S.R.KRISHNA KUMAR
                           AND
     THE HON'BLE MRS.JUSTICE K.S.HEMALEKHA

            RFA NO.200127/2018 (MON)

BETWEEN:

M/s. Tridhara Agro Industries,
By its Proprietor
Mr. Manoj Shantilal Chajjed,
Age: 48 years, R/o C-4, MIDC Area,
Parbhani (M.S) - 431 401.
                                              ... Appellant
(By Sri K.A. Kalburgi, Advocate)

AND:

M/s Bhagyalaxmi Traders,
A proprietary concern of
Mr. Anil Kumar Bohara
S/o Late Parasmal Bohara,
Age: 47 years, Occ: Business,
R/o Kallur Colony, Station Road,
Raichur - 584 101.
Having his office at shop No.8,
Beside S.B.M. Bank,
Lingasugur Road, Raichur-584 101.
                                            ... Respondent
(By Sri Mahaveer Kumar Daftari, Advocate)
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      This Regular First Appeal is filed under Section 96
R/w Order 41 Rule 1 of Code of Civil Procedure, praying to
set aside the judgment and decree passed by the Addl.
Senior Civil Judge at Raichur in O.S No.137/2016 dated
02.08.2018 and grant such other relief/s as this Court
deems fit to grant to the appellant in the circumstances of
the case including the costs of the appeal.


      This appeal coming on for admission this day,
K.S. Hemalekha J., delivered the following:


                           JUDGMENT

The present appeal is by the defendant, assailing

the judgment and decree dated 02.08.2018 passed in

O.S No.137/2016 by the Addl. Senior Civil Judge and

JMFC-I at Raichur (for short 'the Trial Court'),

decreeing the suit of the plaintiff for recovery of

money.

2. For the sake of convenience, the parties

would be referred to as per their ranking before the

Trial Court.

3. The relevant facts are that, the plaintiff

filed a suit for recovery of money for a sum of

Rs.23,00,000/- with interest at 24% per annum from

the date of the suit till realization for the sale of cotton

seeds to the defendant contending that the defendant

had purchased the cotton seeds worth Rs.96,33,087/-

on credit basis under different invoices between

04.06.2015 and 09.04.2016 and made part payment

of Rs.77,02,529/- on different dates and the

defendant is still liable for outstanding dues to the

tune of Rs.19,30,558/-, in addition to it Rs.2,88,593/-

being the differential central sales tax and Rs.97,222/-

being the interest on the principle amount totaling to

Rs.23,00,000/-.

4. The defendant has filed written statement

specifically contending that the plaintiff was fully

aware that the requirement of cotton seeds by the

defendant was for the purpose of manufacturing of oil

and oil cake. The quality which was assured by the

plaintiff was not supplied to the defendant and goods

supplied was poor quality seeds and the bill claimed

by the plaintiff is more higher than the market value

and contended that due to the low quality, the

defendant has suffered heavy loss.

5. The Trial Court, on the basis of the

pleadings of the parties, framed the following issues:

1. Whether the plaintiff proves that, the defendant has purchased goods for plaintiff worth of Rs.96,33,087/- and made part payment of Rs.77,02,529/-?

2. Whether the plaintiff proves that, the defendant is liable to pay in all Rs.23,00,000/- as contended in paragraph No.9 of the plaint?

3. Whether the plaintiff further proves that, the defendant is liable to pay interest @ 24% per annum as contended?

4. Whether the defendant proves that, the goods supplied by the plaintiff were of substandard

quality whereby he has sustained heavy loss of more than 50%?

5. Whether the plaintiff is entitled for the relief as sought for?

6. What decree or order?

6. In order to substantiate their case, the

proprietary of the plaintiff examined himself as PW.1

and got marked Exs.P1 to P25. On the other hand,

though the defendant filed his written statement, did

not enter the witness box to substantiate his case.

7. The Trial Court, on the basis of the

available evidence on record, partly decreed the suit

of the plaintiff holding that the plaintiff is entitled to

Rs.21,11,244/- with future interest at the rate of 10%

per annum from the date of filing of the suit till its

realization.

8. Heard the learned counsel for the appellant

and the learned counsel for the respondent.

9. Sri. K.A. Kalburgi, learned counsel for the

appellant/defendant would contend that the defendant

could not context the suit due to bonafide reasons, as

when the matter was posted for cross-examination of

the plaintiff, the defendant was ill and as such, he

could not furnish necessary instruction to his counsel

to cross-examine PW.1 and thus, the cross-

examination of PW.1 was taken as nil. It is further

contended that the defendant was unwell and could

not lead any evidence on his behalf and the Trial Court

has taken the evidence of defendant as nil and the

Trial Court proceeded to decree the suit of the

plaintiff. It is contended by the learned counsel for the

appellant that an opportunity to cross-examine the

plaintiff and to lead evidence would be afforded, as it

is literally an ex-parte decree.

10. Per contra, Sri. Mahaveer Kumar Daftari,

learned counsel for the respondent/plaintiff would

contend that the suit was filed in the year 2016 and

the defendant never came forward to cross-examine

the PW.1 and to lead his evidence, in spite of affording

sufficient opportunity to the defendant. Thus, he

would contend and sought to justify the judgment and

decree passed by the Trial Court.

11. In view of the rival contentions urged by

the learned counsel for the parties, the point that

arises for consideration in this appeal is,

Whether the impugned judgment and decree passed by the Trial Court calls for any interference?

12. We have given our thoughtful consideration

to the arguments advanced by the learned counsel for

the appellant and the learned counsel for the

respondent and perused the entire material on record.

13. The transaction between the plaintiff and

the defendant for the purchase of goods is not in

dispute. The dispute is regarding the amount liable to

be paid by the defendant to the tune of

Rs.23,00,000/- to the plaintiff. The defendant in his

written statement has stated that the plaintiff has

billed the amount at the higher rate than the market

value and the plaintiff has suppressed the quality of

the goods at the time of the agreement between the

plaintiff and the defendant. In his written statement

he contended that, due to the poor quality of the

kernel oil seeds already got consumed or burnt

owning to the moist and humidity storage and the

plaintiff has deliberately suppressed latent defect in

the seeds at the time of delivery and due to the

substandard quality of the goods, the defendant had

suffered heavy loss and would contend that the

defendant is not liable to pay any amount to the

plaintiff as claimed in the suit. The Trial Court while

framing the issues has framed issue No.4 which reads

as under:

"4. Whether the defendant proves that, the goods supplied by the plaintiff were of substandard quality whereby he has sustained heavy loss of more than 50%?"

14. The said issue framed by the Trial Court is

casting burden on the defendant to prove that the

plaintiff has supplied substandard goods and as such

he has suffered heavy loss. The defendant though has

raised this contention in his written statement along

with various other contentions, has not chosen to

cross-examine the plaintiff fully, nor the defendant

has led any evidence on his behalf.

15. The material on record would depict that

the plaintiff filed his affidavit in lieu of evidence and

the same was taken on record as evidence of PW.1

and he got marked documents as Exs.P1 to P25 and

he was partly cross-examined by the defendant's

counsel on 22.03.2018 and the matter was posted for

further cross-examination of PW1 on 14.06.2018. On

the said date i.e., 14.06.2018, PW.1 remained absent

and the matter was adjourned for cross-examination

of PW.1 to 26.06.2018. On the said date, learned

counsel for the defendant could not cross-examine the

PW.1, as the defendant fell-ill and could not furnish

necessary instructions to his counsel to cross-examine

the PW.1 and hence, the cross-examination of PW.1

was taken as nil. The matter was posted for

defendant's evidence on 03.07.2018. On the said

date, the defendant counsel remained absent and the

evidence of defendant was taken as nil and the matter

was posted for argument on 16.07.2018. On

16.07.2018, The Trial Court took the argument as

heard, though the counsel for the defendant could not

appear and submit his arguments and the matter was

posted for judgment on 02.08.2018 and accordingly,

on 02.08.2018, the Trial Court by its judgment and

decree, decreed the suit of the plaintiff in part.

16. From the events stated supra, it is evident

that within a span of few days itself, the evidence of

PW.1 was closed and the evidence of defendant was

taken as nil on 03.07.2018 itself and there was no

proper opportunity afforded to the defendant to cross-

examine the PW.1 and to lead his evidence.

Apparently, on 16.07.2018, the arguments of the

plaintiff and the defendant was taken as heard and as

per the contention of the defendant, his counsel could

not appear on the said day due to personal reasons

and finally the judgment was pronounced on

02.08.2018. This clearly depicts that there was no

sufficient opportunity afforded to the defendant to

either lead evidence or address the argument on his

behalf.

17. Thus, it is a fit case where retrial is

considered necessary and looking into the materials

on record, it clearly disclose that there was no

sufficient opportunity afforded to the defendant to

prove his case.

18. In view of the same, we are of the

considered opinion that the impugned judgment and

decree passed by the Trial Court lacks opportunity to

the defendant and the same is liable to be set aside,

subject to the payment of costs payable by the

defendant to the plaintiff. The Trial Court ought to

have afforded an opportunity to the defendant to

cross-examine the plaintiff and lead his evidence in

accordance with law. In view of the same, the point

raised for our consideration is answered in the

affirmative holding that the impugned judgment and

decree requires interference and hence, the matter is

to be remanded to the Trial Court for fresh

adjudication in accordance with law after affording an

opportunity to the defendant to cross-examine the

plaintiff and to lead the evidence in accordance with

law.

19. In the result, we pass the following:

ORDER

i) The appeal is allowed.

ii) The impugned judgment and decree dated 02.08.2018 passed by the Trial Court is hereby set aside.

iii) The matter is remitted back to the Trial Court for consideration afresh after giving an opportunity to both sides to adduce oral and documentary evidence in support of their respective claims, subject to the appellant/defendant paying a sum of

Rs.10,000/- to the respondent/plaintiff by way of costs on the next date of hearing before the Trial Court.

iv) The parties undertake to appear before the Trial Court on 02.03.2022 without any further notice from the Trial Court.

v) Liberty is reserved in favour of both the parties to adduce evidence/further evidence on their respective sides and also cross- examine.

vi) All rival contentions are kept open and no opinion is expressed on the merits/demerits of the case.

vii) The Trial Court is hereby directed to dispose of the suit on merits as expeditiously as possible and preferably within a period of six months from 02.03.2022.

viii) Both parties are directed to co-operate with the Trial Court for expeditious disposal of the suit.

ix)    No order as to costs.





   x)    In view of disposal of the appeal, I.A.1/2018

for stay does not survive for consideration and the same stands dismissed.

Sd/-

JUDGE

Sd/-

JUDGE SMP/LG